SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 4, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment, asserting the defenses of lack of medical necessity and that plaintiff sought to recover amounts in excess of the workers’ compensation fee schedule. Finding that plaintiff had established a prima facie case and that defendant had failed to establish that its denial of claim forms were timely mailed, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. This appeal ensued.

Contrary to the determination of the Civil Court, defendant demonstrated that the denial of claim forms at issue, which were annexed to its cross motion, were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

In support of its cross motion, defendant annexed a copy of its denial of claim form which [*2]denied plaintiff’s claim for services rendered on April 6, 2006 on the ground of lack of medical necessity, as well as an affirmed peer review report which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for such services. As a result, defendant made a prima facie showing of its entitlement to summary judgment with respect to this claim form (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). With respect to the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of bills for services rendered on March 14, 2006, which claims were timely denied on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule, we find that defendant made a prima facie showing of its entitlement to judgment thereon. As plaintiff failed to rebut defendant’s prima facie showings, and plaintiff’s remaining contentions are either raised for the first time on appeal or lack merit, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 21, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The Civil Court granted defendant’s motion, and the instant appeal ensued.

Plaintiff does not dispute that defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity. In addition, in support of its motion for summary judgment, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that the services at issue were not medically necessary was unrebutted by plaintiff. Therefore, defendant’s motion for summary was properly granted (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., [*2]16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In view of the foregoing, and as plaintiff’s remaining contentions lack merit, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: July 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 2, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this commercial claims action to recover assigned first-party no-fault benefits in the sum of $1,130.69. Defendant failed to appear or answer, and a default judgment was entered against defendant in 2004. In 2008, defendant moved to vacate the default judgment, arguing, inter alia, that the “small claims part” [sic] of the Civil Court of the City of New York does not have subject matter jurisdiction over actions brought by an assignee, and that its motion to vacate the default judgment should be granted pursuant to CPLR 317 or 5015. The Civil Court denied defendant’s motion on the ground that it was untimely. The instant appeal by defendant ensued.

For the reasons stated in Dr. Robert E. Stoessel, Psychologist, P.C. v Allstate Ins. Co. (___ Misc 3d ___, 2010 NY Slip Op ______ [Appeal No. 2009-576 Q C], decided herewith), the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 2, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this commercial claims action to recover assigned first-party no-fault benefits in the sum of $880.52. Defendant failed to appear or answer, and a default judgment was entered against defendant in 2004. In 2008, defendant moved to vacate the default judgment, arguing, inter alia, that the “small claims part” [sic] of the Civil Court of the City of New York does not have subject matter jurisdiction over actions brought by an assignee, and that its motion should be granted pursuant to CPLR 317 or 5015. The Civil Court denied defendant’s motion on the ground that it was untimely. The instant appeal by defendant ensued.

Contrary to defendant’s contention, the instant action was properly commenced in the Commercial Claims Part of the Civil Court by plaintiff – – a professional corporation which had its principal office in the State of New York ^[FN1] (see CCA 1801-A [a]; 1809-A [a]; cf. East End [*2]Med., P.C. v Oxford Health Ins., Inc., 12 Misc 3d 135[A], 2006 NY Slip Op 51229[U] [App Term, 1st Dept 2006]).

Defendant’s contention that there was no proof that defendant had been served with the notice of claim also lacks merit. Pursuant to CCA 1803-A, the clerk of the court is to provide a defendant with notice of the claim “by ordinary first class mail and certified mail with return receipt requested . . . If, after the expiration of twenty-one
days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim.”

The commercial claims index card herein indicates that defendant was properly served with notice of the claim. Defendant’s conclusory denial of service failed to rebut the presumption that defendant received notice of the claim, since the mail had not been returned as undeliverable prior to the expiration of 21 days (see CCA 1803-A). Consequently, it was incumbent upon defendant to demonstrate a reasonable excuse for its default as well as a meritorious defense to the action (see CPLR 5015 [a]; Euguene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), which it failed to do. Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion to vacate the default judgment. Accordingly, substantial justice was done between the parties (see CCA 1807-A) and, thus, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 16, 2010

Footnotes

Footnote 1: We note that both CCA 1801-A and 1809-A were added by the Legislature in 1987. In 1992, CCA 1801-A (a) was amended to replace the original words therein, i.e., that plaintiff have a “principal office in the city of New York” with the words “principal office in the state of New York”; however, CCA 1809-A (a) was not similarly amended. The corresponding sections in the UDCA and UCCA have always provided that the corporate plaintiff’s principal office be in the State of New York, and the Uniform Rules for the New York City Civil Courts (22 NYCRR) § 208.41-a (a) (1) likewise states that the principal office must be in the State of New York. Clearly, the failure to so amend CCA 1809-A (a) is an oversight.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 4, 2008. The order granted defendant’s motion to vacate a judgment and the underlying order granting plaintiff’s motion for summary judgment on default and, upon such vacatur, restored plaintiff’s motion to the calendar.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and the motion was granted on default. A judgment was subsequently entered pursuant to the order. Days later, defendant moved to vacate the default judgment and the underlying order. The Civil Court granted defendant’s motion and, upon vacatur, restored plaintiff’s summary judgment motion to the calendar. The instant appeal by plaintiff ensued.

In order to vacate the judgment and underlying order pursuant to CPLR 5015 (a) (1), defendant was required to establish both a reasonable excuse for its default and a meritorious defense to the action (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The affirmations submitted by defendant in support of its motion to vacate sufficed to establish a reasonable excuse for its failure to oppose plaintiff’s motion for summary judgment.

Defendant also established an arguably meritorious defense to the action as its showing that plaintiff’s assignor was acting as an employee at the time of the accident was sufficient to require that the issue of whether workers’ compensation benefits are available be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]; Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dist 2007]). In addition, contrary to plaintiff’s contention, defendant’s motion was timely (see CPLR 5015 [a] [1]).

Accordingly, the order is affirmed. [*2]

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 22, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court granted defendant’s motion, and the instant appeal ensued.

The affidavit of an employee of Kemper Independence Insurance Company, submitted by defendant, failed to provide allegations concerning defendant’s standard
office practices and procedures designed to ensure that items are properly addressed and mailed so as to establish that defendant had timely mailed its denial of claim form (see Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting defendant’s motion for summary judgment is reversed and defendant’s motion is denied.

In light of our determination, we do not reach plaintiff’s other contentions.

Steinhardt, J.P., Pesce and Rios, JJ., concur. [*2]
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered November 12, 2008. The order (1) granted the branch of defendant’s motion seeking leave to renew defendant’s prior motion and, upon renewal, directed plaintiff to return monies paid to it by defendant; (2) directed plaintiff to pay half the cost of defendant’s expert witness at trial; and (3) granted the branch of defendant’s motion seeking, in effect, to vacate the portion of the prior order which, sua sponte, restored the matter to the trial calendar, and directed that plaintiff move for such relief.

ORDERED that the appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, after a judgment in favor of plaintiff was satisfied by defendant, the underlying order in favor of plaintiff, upon which the judgment was entered, and implicitly the judgment, were vacated and the action was placed on the trial calendar. Although the parties dispute the issue, court documents indicate that the action was subsequently dismissed due to plaintiff’s nonappearance. Thereafter, defendant moved, in effect, for restitution of the amounts paid to plaintiff, pursuant to CPLR 5015 (d). The Civil Court granted the motion and, sua sponte, restored the matter to the trial calendar. Subsequently, defendant moved for, among other things, leave to renew the prior motion, and, in effect, to vacate the portion of the prior order which, sua sponte, restored the motion to the trial calendar. By order entered November 12, 2008, the Civil Court again ordered restitution, directed plaintiff to pay half the cost of defendant’s expert witness at trial, and vacated the portion of the prior order which, sua sponte, restored the matter to the trial calendar, with a direction that plaintiff move to restore. The instant appeal by plaintiff ensued. The appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial, [*2]which relief was not sought in defendant’s motion papers, is dismissed on the ground that said portion of the order did not determine a motion made upon notice and is not appealable as of right (CCA 1702 [a] [2]; see CPLR 2211).

The remainder of the order is affirmed. Where a judgment that has already been paid in full is set aside, the party that paid the judgment may seek repayment pursuant to CPLR 5015 (d), which authorizes a court, upon motion, to direct restitution. In our view, the Civil Court providently exercised its discretion in directing such restitution. Moreover, upon a review of the record, we find that, under the circumstances presented, the Civil Court properly directed plaintiff to move to restore the matter to the trial calendar.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed without costs and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court granted plaintiff’s motion, and this appeal by defendant ensued.

On appeal, defendant argues, as it did in the Civil Court, that the affidavit submitted by plaintiff’s billing manager in support of plaintiff’s motion for summary judgment was insufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518. We agree (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores Thomas, J.), entered September 25, 2006. The order denied the petition of All For Happy Smiles Dental, P.C. to vacate a master arbitrator’s award.

ORDERED that the order is affirmed without costs.

All For Happy Smiles Dental, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award, which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

As the pertinent facts in this case are the same as those in 563 Grand Med., P.C. v Nationwide Ins. Co. (24 Misc 3d 135[A], 2009 NY Slip Op 51493[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), Avanessov v State-Wide Ins. Co. (21 Misc 3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]) and SP Med., P.C. v Country-Wide Ins. Co. (20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]), for the reasons stated in those cases, the instant order is affirmed.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered September 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $139.34 is denied; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. According to the papers submitted by defendant in support of its motion, plaintiff, a professional corporation licensed to perform acupuncture, sought reimbursement in the sum of $139.34 for an initial acupuncture visit, a claim that defendant denied in its entirety. Plaintiff further sought reimbursement for a series of acupuncture sessions for which it had billed $90 per session. Defendant paid plaintiff for the sessions at the reduced rate of $42.84 per session, which, defendant claimed, was the amount paid to medical doctors for similar services. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff did not submit its claim forms in support of its cross motion for summary judgment. In light of plaintiff’s failure to submit competent evidence, plaintiff failed to establish its entitlement to summary judgment (see CPLR 3212; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Contrary to plaintiff’s contention, defendant’s submission of the claim forms in support of its own motion did not lay the requisite foundation for their admission as evidence pursuant to CPLR 4518, since an acknowledgment of receipt does not “concede the admissibility of the purported claim forms or the facts set forth therein” (see Midborough Acupuncture,P.C., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U]). Accordingly, the Civil [*2]Court properly denied plaintiff’s cross motion for summary judgment.

The affidavit submitted by defendant sufficiently established that its denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant had timely paid a portion of each of the claims and that defendant had timely denied the balance allegedly due on them. This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff’s complaint with respect to those claims.

We note that, despite plaintiff’s allegations, plaintiff has failed to demonstrate that the New York Workers’ Compensation fee schedules for acupuncture services performed by a medical doctor and by a chiropractor were not “prepare[d] and establish[ed]” by the Chair of the Workers’ Compensation Board (see Workers’ Compensation Law § 13; see also Insurance Department Regulations [11 NYCRR] § 68.1 [a]).

Accordingly, the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon the claim for $139.34 is denied and the order is otherwise affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2010